ORDER
M.Karpagavinayagam, J.
1. M.T.Sikkannan, the first respondent herein, by order dated 23.7.1998, was removed from service, by the Commissioner of Municipal Administration, the second petitioner herein, on finding that the charges framed against him are proved. He filed an appeal before the Government and the same was rejected. Then, he filed O.A.No.3636 of 1999 before the Tribunal, challenging the order of removal from service. The Tribunal, by order dated 12.2.2001, set aside the order of removal and directed the Department to give all consequential benefits including the promotion which has been with-held due to penalty of removal from service. Challenging the said order of the Tribunal dated 12.2.2001, the present writ petition has been filed by the Department through the Secretary to Government, Municipal Administration Department.
2. The facts in brief are as follows:
(a) M.T.Sikkannan, the first respondent herein was appointed as a Junior Assistant in Dindigul Municipality on 6.7.1965. In 1981, he was promoted as Accountant. He was working as an Accountant in Manapparai Municipality between 1993 and 1995.
(b) On noting that so many irregularities have been committed during the course of employment, the Commissioner of Municipal Administration initiated disciplinary proceedings against the first respondent by a charge memo dated 7.9.1995. Explanation was received.
(c) Thereafter, enquiry officer was appointed. In the enquiry, evidence was produced by both parties. On 31.12.1996, enquiry officer submitted his report holding that charges 2,5,6 and 7 have been proved and charges 1,3 and 4 have not been proved.
(d) The enquiry report was communicated to the first respondent. After receipt of the same, the first respondent sent his explanation. By order dated 19.12.1997, the Commissioner of Municipal Administration passed final order removing the first respondent from service.
(e) Challenging the same, the first respondent filed an appeal before the Government. Since the Government in the appeal noticed that opportunity was not given to the delinquent officer before the probation of conclusion, it remanded the matter to the disciplinary authority to send a notice and then decide the matter after giving opportunity.
(f) Accordingly, on 18.5.1998, the first respondent received a notice asking him to show cause as to why the proposed penalty of removal from service should not be imposed on him. Then he submitted his explanation. After considering the same, by order dated 23.7.1998, the Commissioner of Municipal Administration imposed the penalty of removal from service. Challenging the same, he filed an appeal before the Government and the same was rejected. Hence, the first respondent filed the O.A. before the Tribunal.
(g) The Tribunal set aside the impugned order passed by the Commissioner of Municipal Administration mainly on the ground that when the disciplinary authority disagrees with the enquiry officer in respect of some charges, then the disciplinary authority shall, before recording its finding, must record its tentative reasons for such disagreement and give the delinquent officer an opportunity. The Tribunal, on the strength of the decision (Punjab National Bank and others vs. Kunj Behari Misra), held that such an opportunity was not given and therefore, entire proceedings, as also the penalty of removal from service were vitiated.
(h) Further, the Tribunal, instead of remitting the matter back to the disciplinary authority for fresh disposal, directed the authorities to give all consequential benefits including notional promotion, in view of the fact that the applicant before the Tribunal has already reached the age of superannuation on 31.10.2000, on the strength of the principles laid down in 1995 (29) A.T.C. 113 (Transport Commissioner, Ms-5 vs. A.Radha Krishna Moorthy) and 1996 (6) SUPREME 164 (R.Parangusam vs. Chief Electoral Inspector and Another). This order of the Tribunal is under challenge in this writ petition filed by the Department.
3. According to learned counsel for the Government, opportunity has been given to the first respondent for making his submissions, informing about the conclusion arrived at by the disciplinary authority and that opportunity was also given for making his submissions with reference to the imposition of penalty. In any event, it is stated that the Tribunal ought to have remanded the matter back to the disciplinary authority for continuing the proceedings to enable the disciplinary authority to proceed with the enquiry from the stage it was held to be vitiated and mere attainment of the age of superannuation would not be a ground to hold that the first respondent would be entitled to all consequential benefits, including promotion etc.
4. On the above aspects, we have heard learned counsel for the first respondent. Learned counsel for the first respondent has cited the decisions reported in (i) (S.B.I. vs. K.P.Narayanakutty), (ii)2001 Lab. I.C. 2387 (S.B.I. vs. Arvind K.Shukla), (iii)1996 (6) SUPREME 164 (R.Parangusam vs. Chief Electoral Inspector and Another), (iv)(Transport Commissioner vs. A.Radha K.Moorthy, (v)1993 Supp.(1) S.C.C. 564 (Prafulla Chandra Mohapatra vs. State of Orissa) and (vi) (Dewan Singh vs. State of Haryana) and would submit that remanding the matter is unnecessary, in view of the fact that the first respondent had already reached the age of superannuation on 31.10.2000 itself and his present age is 61 years and as such, the impugned order of the Tribunal is justified.
5. As an alternative argument, learned counsel for the first respondent, on the strength of the decision (Hardwarilal vs. State of U.P.), would submit that since long time has elapsed, instead of remitting the matter, a direction could be given for reinstatement of the first respondent with 50% backwages.
6. On the other hand, learned counsel for the Government would cite the decisions (Chairman, Vishakapatnam Port Trust vs. M.P.Ramachandra Reddy and Another) and 1999 S.C.C. (L & S) 623 (U.P.(Madhya) Ganga Beej Evam Vikas Nigam Ltd. vs. Prem Chandra Gupta) and contend that mere lapse of time would not suffice to hold that the remand of matter is unnecessary, especially when serious charges have been levelled against the first respondent.
7. We have considered the submissions made by learned counsel for the parties and perused the impugned order of the Tribunal and the typed set of papers.
8. The decisions cited by learned counsel for the first respondent, in our view, would not apply to the present facts of the case, since in those cases, more than ten years had elapsed and the charges also were not serious. Further, in these cases, it was held on the basis of the facts that even when there is illegality in commencement of enquiry, fresh enquiry is unnecessary.
9. As a matter of fact, the Apex Court in (Deputy Registrar, Co-op. Societies vs. Sachindra Nath Pandey) has held that mere elapsing of a long period of 16 years from the date of commencement of departmental enquiry, would not be a sufficient ground to close the matter.
10. Furthermore, it has also not been decided in any judgment rendered by the Supreme Court that whenever a delinquent officer reached the age of superannuation, there should not be any order of remand for continuance of the proceedings.
11. We have also gone through the seven charges levelled against the first respondent. The charges would indicate that there are serious allegations against the first respondent with reference to the creation of records and sending false report with respect to the appointment of workers and promotion of the employees. Therefore, we are of the view that the order of the Tribunal is to be set aside and the matter has to be remitted back to the disciplinary authority.
12. It is contended by learned counsel for the first respondent that some of the documents asked for have not been furnished. However, learned counsel for the first respondent is not able to show any prejudice over the non-supply of those documents to the first respondent, especially when it has not been established before this Court that those documents would be relevant for deciding the issue.
13. Of course, in this case, though notice was issued by the Department, it was only with reference to the imposition of penalty and not the communication with reference to the reasons for disagreement in respect of some charges, which according to the enquiry officer, have not been proved and as such, the order of removal from service, without giving such an opportunity, is liable to be set aside. Therefore, it will be appropriate to remit the matter back to the disciplinary authority as the entire enquiry before the enquiry officer is over and the only irregularity committed by the disciplinary authority is that the reasons for disagreement have not been communicated to the first respondent and as such, the process of the finalising the issue is at the fag end.
14. For the foregoing reasonings, the order of the Tribunal is set aside and the matter is remitted back to the disciplinary authority and the disciplinary authority shall continue the enquiry from the stage of furnishing the dissenting tentative reasons for disagreeing with the enquiry officer with regard to some of the charges that the authority has disagreed. The enquiry shall be completed within six months from the date of receipt of a copy of this order. The writ petition is allowed accordingly. No costs.